PLJ 2009 Cr. C. (Karachi) 32
Present: Syed Pir Ali Shah, J.
ASIF ALI ZARDARI--Applicant
versus
STATE--Respondent
Cr. Rev. Application No. 139 of 2005, decided on 9.4.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435 & 439 r/w S. 561-A--Pakistan Penal Code, (XLV of 1860)--Ss. 120-A & B, 302, 324 & 201--Qisas and Diyat--Criminal revision--Three FIRs were lodged--Charge of conspiracy to murder--An application u/S. 265-K, Cr.P.C. was moved which was dismissed on the ground of vague and invalid--Assailed--Determine the legal propriety material illegality and irregularity--No evidence direct or substantial oral or documentary or any other material available on record to establish any conspiracy--Validity--Court has got ample powers to acquit the accused even if the witnesses are not examined--Provisions of S. 265-K, Cr. P.C. have been inserted to prevent the rigorous of a prolonged trial when it is apparent from record that there is no probability of accused being convicted of any offence--Held: Neither any evidence that the offence was committed by accused nor there is any probability of the accused being convicted in the matter for any offence--Accused was, therefore, entitled to be acquitted u/S. 265-K, Cr. P.C. from the charge of the case in the interest of justice--Accused had suffered mental agony of as much as 11/12 years of trial proceedings and in peculiar circumstances, further proceedings would bring more suffering to the accused for no fault on his part--No case would be made out against the applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence--Further held: It is matter of record that as much as three FIRs were registered with interval but the name of the accused does not transpire in any of the FIR and as such, the accused was not nominated by either of the complainant--Even, if remaining witnesses are examined, the case of the prosecution will not be improved so much so it cannot result in conviction--It is a fit case where proceedings pending before trial Court in respect of the applicant be quashed as there is no probability of the applicant being convicted in the alleged offence, as proceedings pending are nothing but abuse of process of the Court criminal revision was allowed and accused was acquitted.
[Pp. 44, 45 & 46] B, D, F, G & H
Administration of Justice--
----Appreciation of evidence--No evidence direct or substantial, oral or documentary or any other material available to established any conspiracy--Buren of proof is on the prosecution and the evidence available with it, if at all, accepted, the same will not be able to establish the charge against accused in light of required standard of law--Hence, recording of further evidence will waste public time and serve no public interest, rather on the contrary, such futile exercise will prove to be further scandalous to the accused person, who equally deserve justice and fair treatment in all respect. [P. 43] A
1991 P.Cr. L.J. Kar. 644, rel.
Administration of Law--
----Lives of human valuable souls--Every accused is presumed to be innocent unless proves otherwise as a matter of law. [P. 44] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Object of--Whereby inherent powers are conferred upon High Court is to do the real and substantial justice and to prevent the abuse of the process of Court. [P. 45] E
M/s. Shoukat Zubedi, Shahadat Awan and Abu Bakar Zardari, Advocates of the Applicant.
M/s. Sarfraz Khan Tanoli and Tanveer-ul-Islam, Advocates for Mst. Badrun Nisa wife of deceased Ashiq Ali Jatoi.
Mr. Mahmood A. Qureshi, Advocate for Complainant.
Mr. Muhammad Ilyas Khan, Special Prosecutor for State.
Dates of hearing: 1, 2, 7 & 9.4.2008.
Judgment
This Revision Application has been directed under Sections 435-439 Cr. P.C. read with Section 561-A Cr. P.C. in which order dated 26.11.2000 passed by the lower Court has been impugned.
This case, has got chequered history. As such, in this very incident, as much as, three FIRs were recorded that too, on different dates with intervals, viz. (1) FIR No. 386/96 dated 20.9.1996 lodged on behalf of State by complainant Inspector Haq Nawaz Sial, SHO Clifton, Karachi, at 2200 hours, who had mysteriously been shot dead on the following day of this incident; (2) FIR No. 399/96 dated 29.9.1996 lodged by complainant Asghar Ali son of Karim Bux Buriro, at 0059 hours; and (3) FIR No. 443/96 dated 9.11.1996 lodged by complainant Noor Muhammad son of Ibrahim at 1245 hours.
Although, the case in hand relates to third FIR Bearing No. 443/1996 dated 9.11.1996 lodged by complainant Noor Muhammad, but essentially, it is very pertinent to reproduce below in sequence the texts of these three FIRs lodged on different occasions:
FIR No. 386/96 dated 20.9.1996 lodged by complainant Inspector Haq Nawaz Sial, SHO Clifton, Karachi, at 2200 hours:
"At this time a written statement u/S. 154 Cr.P.C. of complainant shown in Column No. 2 is received through ASI Abdul Basit posted at Saddar Police Station, which is copied as under. It is from Jinnah Hospital Karachi dated 20/9/96 at 2115 hours that this statement u/S. 154 Cr. P.C. is made. Today I, Inspector Haq Nawaz Sial, SHO Clifton under the supervision and leadership of Mr. Muhammad Tahir, ASP Darakhshan the officiating SDPO Clifton and Mr. Shahid Hayat, ASP Saddar on the information of SHO P.S. Garden SI Shabbir Ahmed Qaimkhani, SHO P.S. Napier Inspector Agha Muhammad Jamil which disclosed that suspects wanted in case FIR No. 270/96 u/S. 147/148/149/353/452/225-B PPC of P.S. Napier are the armed guard of Mir Murtaza Bhutto and were expected in different vehicles to reach at 70 Clifton. I along with officers and police party was present at Sharah-e-Iran opposite Clifton Garden with the due permission of the above said superior officers for stopping and joining them in the investigation. At 2100 hours the suspects in four vehicles reached at the above said place, I SHO in the company of police party gave signal to stop. The accused taking their arrest certain, pointed out their arms from inside their vehicles viz. double cabin Pajero and cars. Mir Murtaza Bhutto who was sitting on the front seat of blue Pajero No. 2 loudly ordered his armed guards to kill policemen, the dogs, on which all the armed persons in all the vehicles started firing on the police. I and ASP Saddar received bullet injuries. Police vehicles were damaged. In exercise of the right of self-defence and keeping in view to arrest of accused, the police party also returned the fire with the result the accused in and outside the vehicle were injured. The policemen have immediately brought me to hospital. Other officers were busy in action at the place of incident. Report is made. Action be taken. My contention is that the above accused under the order of Mir Murtaza Bhutto in furtherance of their common intention by causing obstruction in the discharge of their official duties and with a view to kill police party opened fires and such caused injuries to me and ASP Saddar and also damaged Government vehicles. Heard the statement which is correct."
FIR No. 399/96 dated 29.9.1996 lodged by complainant Asghar Ali son of Karim Bux Buriro, at, 0059 hours:
"I, Asghar Ali S/o Karim Bux Buriro resident of new bus stand, Larkana and I am private servant of Mir Murtaza Bhutto. During the journey I keep his medicines and thermos of water etc. with me. On 20/9/96, the Friday, at 0600 Hours, I along with Mir Sahib went in his Pajero from 70 Clifton to Christian Community at Surjani Town and Mir Sahib inaugurated that office, delivered speech and thereafter with the procession of Christian Community went in the Sindhi Village where Mir Sahib held a political meeting. We remained there for one hours; After refreshment Mir Sahib proceeded to 70 Clifton along with Ashiq Jatoi, Dr. Mazhar Memon, Ismail, Ayaz, Akhtar Ali, Mehmood, Ghulam Mustafa, Qaiser, Wiqar Hussain, Rehman Brohi, Abdul Sattar Rajpur, Yar Muhammad Balouch, Sajjad Haider, Wajahat Jokhio, Ameer Bux Domoki, and Ibrahim Gabol in 3/4 vehicles. I was traveling with Mir Sahib in his Pajero where apart from Mir Sahib and me Ashiq Jatoi was driving. Mir Sahib was sitting with him on the front seat, Yaroo Baloch behind him on the rear seat and Asif on the Jump seat. A police mobile was following for a considerable time and then went away. When we were crossing the Clifton Garden a head of two swords roundabout then the police came in front of us and stopped us. In the meantime it was heard that nobody open will fire. After two minutes firing started. I laid down under the seat to save my life. After 10 minutes I called Mir Sahib whether he was all right, Mir Sahib, replied with "oon" on which I became afraid and I saw and noticed him bleeding from mouth. Ashiq Jatoi was lying on the steering of Vehicle. He was asking in a feeble voice for an ambulance. I, from the window of the vehicle, by begging them with folded hands in the name of God and by weeping requested for stopping the firing as Mir Sahib had already received bullet injury. After some time I again, through the window, in the name of God asked to stop firing. In the mean time I also received bullet injury. After 10/15 minutes I heard of APC which was moving around our vehicle. A voice as heard "come here as I have to pick up Mir Sahib" Police was picking up Mir Sahib when I also got down from the vehicle and informed them that I was also injured and take me to hospital but they did not take me and started taking my personal search. I said to them that I had nothing with me. Where upon the Police asked me to lie down and then I was laid on the footpath alongwith others. After sometime we were taken to P.S. Clifton blind-folded and were locked up at Police Station. After some time I was taken to Jinnah Hospital. After treatment I was handcuffed in the ward. There I cam to know that Mir Sahib has died. Ashiq Jatoi, Wajahat Jokhio, Yar Muhammad Balouch, Sajjad Haider Ghakro, Abdul Sattar Rajpur, and Rehman Brohi were also killed. Dr. Mazher Memon and Ismail were also injured with bullets. After two nights I was brought to Clifton PS in custody. Here, Ghulam Mustafa, Mehmood, Asif, Waqar, Qaiser and Akhtar Ali were also locked-up. Today, through the police guard, I talked to SHO to lodge the report of the incident under my name. It is my statement that the Police in exceeding their power opened fire and killed Mir Sahib and remaining companions and caused injuries to me and to others. I lodge the report justice be done.
FIR No. 443/96 dated 9.11.1996 lodged by complainant Noor Muhammad at 1245 hours:
"1. That on 20/9/96 a public meeting was scheduled to be addressed by Mr. Mir Murtaza Bhutto, Chairman Pakistan Peoples Party (S.B.) at Yousif Goth Suarjani Town Karachi (west) at about 6.00 p.m.
2. That Mir Murtaza Bhutto left his house 70-Clifton at about 5.45 p.m. to address the said meeting and was accompanied by party leaders, workers and personal guards including Mr. Ashique Hussain Jatoi President PPP (SB) Sindh Mr. Sajjad Haider Gakhro, Finance Secretary PPP (SB), Sindh Mr. Yar Mohammad Baloch member Sindh Council, Dr. Mazher memon Vice-President PPP(SB) Hyderabad Division, Mr. Wajahat Hussain Jokhio Information Secretary Hyderabad Division, Noor Mohammad Gugo Secretary (PR) two official guards Mr. Ayaz Dayo and Ghulam Mohammad Bhutto, personal servant Ashgar, party workers Ismail, Bachal and Waqar, private guards, Akhter Mirani, Qaiser Baloch, Mohammad Rahim Brohi and Abdul Sattar Rajpar, Driver Mehmood Bhalai and Asif and others in four different vehicles.
3. That on return from said public meeting at about 8.35 p.m. when Mir Murtaza Bhutto in Pajero Jeep of Mr. Ashiqe Hussain Jatoi himself and his companions named above and others reached at the distance of about 100 meters from main gate of 70-Clifton, on Shahra-e-Iran, 80/100 police personal, duly armed with automatic weapons, had already taken the positions at the place of incident. The police officers namely Wajid Durrani SSP South Karachi, Shahid Hayat ASP Saddar, ASP Darkshan (Name not known), Haq Nawaz Sial SHO Clifton, Zeeshan Kazmi SHO Khokharapar, SHO Garden (Name not known) Agha Jamil SHO Napier signaled the convey to stop. As soon as the convey stopped and Mr. Mir Murtaza Bhutto lowered the window of Pajero Jeep the said police officers shouted "Fire whereupon Yar Mohammad Baloch, Wajahat Jokhio and Sajjad Hyder rushed towards Mir Murtaza Bhutto to provide cover around him but in the mean while police started target shooting, killing Yar Mohammad Baloch, Sajjad Hyder Gakhro, Wajahat Jokhio and Ashiqe Hussain Jatoi, Mohammad Rahim Brohi and Abdul Sattar Rajpar on the spot and critically injured Mir Murtaza Bhutto, Ayaz Dayo, Ismail, Bachal, Asghar and Dr. Mazhar Memon.
4. That the accused police personnel left Mir Murtaza Bhutto and the above named injured to profusely bleed at the place of incident for about 50 minutes and then Mir Murtaza Bhutto was taken to nearby Mideast Hospital and others were taken to Jinnah Post Graduate Medical Centre Karachi. Mir Murtaza breathed his last about 23.55 Hrs. and Bachal succumbed to injuries next day at JPMC.
5. That on the same day at about 1600 hours Shaheed Mir Murtaza Bhutto while addressing a press conference at 70-Clifton had disclosed that a conspiracy is hatched by the Government through Shoaib Suddle DIG Karachi, Wajjid Durrani, SSP (South) Karachi and Mohammad Ramzan Channa SSP CIA Karachi, to arrest him and his workers at large scale on false concocted charges, but he had said that they face these atrocities politically.
6. That the political opponents of Mir Murtaza Bhutto in the Federal and Provincial Government of Sindh, jealous of his rising popularity had conspired to eliminate him and in league with accused police officers named above and one Maj. (Rtd.) Masood Sharif, a Senior Officer of Intelligence Bureau have cold blooded murdered Mir Murtaza Bhutto, Ashique Hussain Jatoi, Sajjad Haider Gakhro, Wajahat Jokhio, Yar Mohammad Baloch, Mohammad Rahim Brohi, Abdul Sattar Rajpar and Mohammad Bachal and caused fire-arm injuries to Ayaz. Dayo, Ismail, Dr. Mazhar and Asghar with intention to kill them.
7. That in order to forestall false defence against cold blooded murder of Mir Murtaza Bhutto a bogus FIR is registered by police at Police Station Clifton, showing a fake encounter, whereas in fact pre-planned and premeditated murders were committed by the accused. The Complainant seeks redress."
As a matter of fact, following list of nineteen witnesses was drawn by the trial Court, out of list of 103 (one hundred and three) witnesses cited in the challan sheet:
1. Asif Ali son of Jamal Din
2. Asghar Ali son of Karim Bux
3. Ghulam Muhammad son of Ghulam Rasool
4. Ali Muhammad son of Ali Soonara (given up)
5. Rao Abdur Rashid
6. Subuk Majeed
7. Ehsan Bhatti
8. Malik Ghulam Sarwar
9. Ishaq Khakwani
10. Haji Abdul Khaliq Somoro (given up)
11. Dr. Altaf Hussain
12. Zahid Hussain Jatoi
13. Shafiq son of Muhammad Safar
14. Rahim Bux Jamali
15. D.S.P Raounaq
16. Ms. Shazia Firdousi
17. Ms Tasnim Kausar
18. Miss Fatima Bhutto (given up)
19. Mohtrama Ghanwa Bhutto (given up)
Before the trial Court, prosecution examined as much as
fifteen witnesses namely complainant. Noor Muhammad as PW-1 Ex.58, Asif Ali as
PW-2 Ex.93, Ishaq Khan Khaqwani as PW-3 Ex.95. Malik Ghulam Sarwar Khan as PW-4
Ex.98, Rao Abdul Rasheed Khan as PW-5 Ex.100, Raunaq Ali as PW-6 Ex.107, Shazia
Firdousi as PW-7 Ex.108, Tasneem Kausar as PW-8 Ex.109, Subook Majeed as PW-9
Ex.110, Ali Mohammad Sonahra as PW-10 Ex.119, Dr. Altaf Hussain Khawaja as
PW-11 Ex.110. Ahsanul Haq Bhatti as PW-12 Ex.133, Asghar Ali as
PW-13 Ex.152, Ghulam Mohammad as PW-14 Ex.157, Dr. Ayaz Ali as PW-15.
Amongst list of prosecution witnesses pertaining to the charge of conspiracy to murder, PW Ali Muhammad son of Ali Sunara at Serial No. 4, PW Haji Abdul Khaliq Soomro at Serial No. 10, PW Miss Fatima Bhutto at Serial No. 18 and PW Mohtarma Ghanwa Bhutto at Serial No. 19 were given up by the Special Public Prosecutor.
Before the trial Court, an application under Section 265-K Cr.P.C. was moved on 22.9.2004 which was decided by the District and Sessions Judge Karachi East on 26.11.2005 whereby the same was dismissed on vague and invalid grounds.
Through this Criminal Revision filed under Sections 435-439 Cr.P.C. read with Section 561-A Cr. P.C. orders dated 26.11.2005 have been assailed in order to determine the legal propriety, material illegality and irregularity committed by (Mr. Zafar Ahmed Khan Sherwani) the then District and Sessions Judge Karachi East.
I have heard learned Advocates representing applicant at great length. I have also heard learned State Counsel on law points involved in the matter so also on the facts. Learned advocates for Mst. Badrun Nisa widow of Ashiq Ali Jatoi also put forth their arguments on legal aspects as well. Besides, learned counsel for complainant namely Noor Muhammad on factual side.
It is contended that the impugned orders are illegal, irregular and improper so much so that the trial proceedings if continued will be in futility and the whole exercise will be an abuse of process of law. It is urged that S. 161 Cr. P.C. statements of six witnesses were available with the prosecutor for nine years but they were not considered fit to be examined as conspiracy witnesses. It has further been argued that the statements of prosecution witnesses are not in conformity with the prosecution case that the applicant/accused had a meeting with absconding accused Abdullah Shah (the then Chief Minister of Sindh) and co-accused Shoaib Sadal (the then DIG Karachi). Learned counsel for applicant argued that there is no evidence direct or substantial, oral or documentary or any other material available on record to establish any "conspiracy" entered into by Asif Ali Zardari with any group of persons for murdering Mir Murtaza Bhutto and his companions on 20.9.1996. It is mentioned that the prosecution has failed to prove offence of conspiracy with common object, common intention to murder against accused Asif Ali Zardari to attempt to murder Mir Murtaza Bhutto and others and to establish cash under Section 120-A and "B" PPC. It is also argued that all the hate and anger of Mir Murtaza Bhutto against accused Asif Ali Zardari are without concrete proof. It is argued that the applicant/accused Asif Ali Zardari was not is nominated in FIR No. 443/96 which was filed alongwith constitutional petition in this Court on 26.9.1996 with a delay of six days. It is vehemently contended that the proof of "conspiracy" is inferential which is not supported by solid facts. It is reiterated that no concrete evidence is available against the applicant/accused which can prove "conspiracy" as alleged. Even there is no evidence of the date, time and place where applicant/accused conspired with any other co-accused and ordered to murder Mir Murtaza Bhutto and others through police party. It is lastly argued that all material witnesses examined for proving conspiracy to kill Mir Murtaza Bhutto and his companions, belong to PPP (Shaheed Bhutto) Party and therefore such witnesses who are interested and inimical are unreliable and their word is not sufficient in law to convict the applicant/accused.
On the other hand, leanred counsel appearing for complainant has urged that the present Revision Application is not maintainable at all inasmuch as there are a number of accused persons involved in the case whereas this application has been filed only on behalf of one person.
Now reverting to the factual position confined to the case of applicant/accused Asif Ali Zardari with regard to alleged conspiracy for murdering Mir Murtaza Bhutto (deceased), it is to be mentioned here that in his cross-examination complainant Noor Muhammad PW-1 Ex.58 has deposed as under:
"..... It is correct to suggest that in my F.I.R. which I lodged on 09.11.1996 I had not stated that Asif Ali Zardari, Masood Sharif, Abdullah Shah, Naseerullah Babar, Shoaib Suddle had made a conspiracy to finish physically Mir Murtaza Bhutto and his companions.
According to my knowledge Asif Ali Zardari was arrested after the down-fall of Benazir Bhuttos' Government on 5th of November 1996. After one day the Government of Abdullah Shah was also dismissed. .... It is correct to suggest that in my F.I.R. dated 09.11.1996 I have neither given the name of Asif Ali Zardari, nor Naseerullah Babar, nor Abdullah Shah. .... It is also not in my knowledge whether there was any apprehension of danger to the life of Mir Sahib and his family members. .... It is correct to suggest that I have not given the names of the persons who conspired in National Government as well as Provincial Government in my S. 154 Cr.P.C. statement. .... It is correct to suggest that I have not given the date in my F.I.R. when the conspiracy was hatched to arrest Mir Murtaza Bhutto. Mir Murtaza Bhutto also never disclosed the date, time and place of the conspiracy. Even I cannot give the date, time and place of the conspiracy. .... I have not recorded my statement on 23.9.1996, therefore, question of stating that Mir Sahab disclosed that today Abdullah Shah and Asif Ali Zardari has got us killed through police and today they have won and we have lost. My statement was not recorded in F.I.R. Bearing No. 386/96 dated 23.9.96. .... My statement on 24.9.96 were never recorded, therefore, question of stating that I have stated in such statement that Mir Sahab informed Ashiq Hussain Jatoi that today Abdullah Shah and Asif Ali Zardari has got us killed through police and today they have won and we have lost, does not arise. My statement in Crime No. 443/96 dated 18.11.96 was never recorded, therefore, question of my stating in that statement that Mir Sahab told us that today Abdullah Shah and Asif Ali Zardari, had made to get us killed through police and that today they have won and we have lost."
In his cross-examination PW-2 Noor Muhammad Ex. 93 has deposed as under:
".... It had stated in my statement dated 25.12.1996 that Mir Sahab told to Ashiq Hussain Jatoi that Abdullah Shah and Asif Ali Zardari had got us killed through police and today they have won and we have lost. (Confronted with his S. 161 Cr.P.C. statement, it is not recorded that words, "through police").
In his cross-examination PW-3 Ishaq Khan Khaqwani Ex. 95 has deposed as under:
".... As I recall, I have stated before police in my S. 161 statement that conflict in between Mir Murtaza Bhutto and Asif Ali Zardari started just after marriage of Mrs. Benazir Bhutto with Asif Ali Zardari. Asif Ali Zardari and Mir Murtaza Bhutto met in Damascus capital of Syria." (Confronted not so recorded).
In his cross-examination PW-4 Malik Ghulam Sarwar Khan Ex. 98 has deposed as under:
".... It is incorrect to say that neither in video nor in news paper Mir Murtaza Bhutto had named Asif Ali Zardari in his speech delivered at Surjani Town." Attributed that ....."
In his cross-examination PW-5 Rao Abdul Rasheed Khan Ex. 100 has deposed as under:
".... It is correct to say that in my S. 161 statement I have not stated that with reference to Mir Murtaza Bhutto that Mir Murtaza Bhutto in his press conference, private talking and assembly in public were critical against Asif Ali Zardari and he used to call Asif Ali Zardari as "Dako" and his father as "Hakoo".
In her cross-examination PW-7 Shazia Firdousi Ex. 108 has deposed as under:
".... It is correct to say that my statement was recorded by police on 24.12.1996. There were 18 seats in first class of PK-309. All the 18 seats on that day were full. I do not know the other 16 passengers of first class of the flight. At present I do not remember the name of Captain of the flight."
In her cross-examination PW-8 Tasneem Kausar Ex. 109 has deposed as under:
".... It is correct to say that there might be a meeting between Asif Ali Zardari and Mir Murtaza Bhutto when I was on my jump seat for rest. I say with confidence that both Asif Zardari and Mir Murtaza Bhutto were seated on seats Bearing Nos. 1-A and 2-C respectively."
In his cross-examination PW-9 Subook Majeed Ex. 110 has deposed as under:
".... It is correct to say that I had grievance against Mrs. Benazir Bhutto government in second terms as I was falsely implicated in the cases. It is correct to say that in 1994 I was involved in murder case and DSP Imdad Ali Khatyan arrested me in that matter."
In his cross-examination PW-10 Ali Muhammad Sonahra Ex. 119 has deposed as under:
".... According to Mir Murtaza Bhutto the persons who wants to kill his family members are Asif Ali Zardari and Abdullah Shah. I cannot produce any press statement. Video cassette or audio cassette of Mir Murtaza Bhutto where in he has stated that due to fear of killing of his family members, by the hand of Asif Ali Zardari and Abdullah Shah, he is sending them to Syria. It is incorrect to say that I am deposing falsely that Mir Murtaza Bhutto had sent his family members to Syria due to fear of killing of their lives."
In his cross-examination PW-11 Dr. Altaf Hussain Khawaja Ex. 110 has deposed as under:
"I do not remember that whether in my S. 161 statement I had stated that Mrs. Nursat Bhutto was also present at that time and alter on Asif Ali Zardari also joined as and asked him as to why he is opposing him in press with reference to the statement of Mir Murtaza Bhutto. It is correct to say that I had not stated in my S. 161 statement about the meeting held in between Mrs. Benazir, Mrs. Nusrat Bhutto, Asif Ali Zardari an Mir Murtaza Bhutto at Islamabad."
In his cross-examination PW-12 Ahsan-ul-Haq Bhatti Ex. 133 has deposed as under:
".... It is incorrect to suggest that even in FIR No. 399/96. I had not stated with reference to statement made by Mir Murtaza Bhutto that Asif Zardari and Abdullah Shah got us killed through police, they have won and we have lost. Vol. says that this FIR No. 399/96 was not lodged by me nor contents of same were read over to me. I do not remember that whether in my statement produced as Ex. 154 I had stated with reference to statement of Mir Murtaza Bhutto that Asif Zardari and Abdullah Shah, got us killed by police, they won and we lost."
It is well settled position of law that the burden of proof is on the prosecution and the evidence available with it, if at all, accepted (as it is), the same will not be able to establish the charge against accused in the light of required standard of law. Hence recording of further evidence will waste public time and serve no public interest, rather on the
A
contrary, such futile exercise will prove to be further scandalous to the accused persons, who equally deserve justice and fair treatment in all respects. The reliance can be placed on 1991 Pakistan Criminal Law Journal Page 644 Karachi Para 4 of relevant page 647 that holds:
"Section 265-K Cr. P.C. relieves the Court from the necessity of going on with the trial, if from the evidence available on record, it is convinced that a criminal charge cannot be sustained and there is no probability of the accused being convicted of any offence."
The language in which this section is couched makes it clear that a Court has got ample powers to acquit the accused even if the witnesses are not examined. The provisions of Section 265-K Cr. P.C. have been inserted to prevent the rigorous of a prolonged trial when it is apparent from the record that there is no probability of the accused being convicted of any offence. The authority on the point is 1991 MLD page 2198 Peshawar Para 6. It has also been held in the cited authority that no useful purpose would be served if the trial Judge will continue with the proceedings and record remaining evidence available with the prosecution. The prosecution case is not as such that the evidence collected by them would prima facie establish involvement of the present accused and that he cannot be set free without recording of the evidence of remaining prosecution witnesses. In any case, present accused could not be convicted on the strength of the testimony of these witnesses examined so far. The case law reported in 2004 Pakistan Criminal Law Journal Page 1071 PSC page 1074/A states; "a plain reading of the above provisions of law shows that there is no embargo placed on the powers of the trial Court to acquit the accused at any stage, which would be necessary intendment of the legislature, means even on the first date of hearing when the accused enters appearance, subject of course, to the condition that the trial Judge should be satisfied, on the basis of the material placed before him that the charge was groundless and that there was no possibility of ultimate conviction of the accused. It has been held in PLD 1965 Supreme Court page 287 and SCMR 2000 page 122 that Judge to act judicially, fairly, justly and honestly while exercising all state powers. It has been held in AIR 1957 Madhpra page 236 (V44C101 December) that in such cases one should avoid being influenced by the misfortune arising out of loss of a life which is a prominent feature in accident cases.
As regards factual position of this incident, the same cannot be disputed as to its seriousness and point of loss of lives of human valuable souls, yet such charge against each accused, is subject to proof. It is well settled position of law that every accused is presumed to be innocent unless proves otherwise, as a matter of law. For the facts and circumstances enumerated above and considering the entire evidence
collected by the prosecution, if taken as a gospel truth, yet no offence has been committed by accused Asif Ali Zardari. There is neither any evidence that the offence was committed by accused Asif Ali Zardari himself nor there is any probability of the accused being convicted in the matter for any offence. He is, therefore, entitled to be acquitted under Section 265-K Cr. P.C. from the charge of the case in the interest of justice. The accused has suffered mental agony of as much, as 11/12 years of trial proceedings and in the peculiar circumstances, further proceedings shall bring more suffering to the accused for no fault on his part.
D
The object of Section 561-A Cr. P.C. whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of Court.
E
To secure the ends of justice powers of this Court are very wide. In the case of M.S. Khawaja v. The State (PLD 1965 Supreme Court 287) following observations were made by the apex Court:
"To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceedings would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the `machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
It was observed by the Hon'ble Apex Court that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out against the present applicant then it would amount to abuse of process of law to allow the prosecution to continue with the trial against an accused.
In view of above cited ruling of Apex Court, I am of the considered view that no case would be made out against the present applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence.
F
Perusal of statements of these 13 witnesses shows that their evidence was hearsay and as such, learned trial Court misread and mis-appreciated the evidence. It is recorded fact that there is absolutely no direct evidence against accused Asif Ali Zardari and there is nothing incriminating against him. The prosecution will not achieve its object on examination of remaining witnesses and in no way this case is likely to end in conviction so far the case of present accused Asif Ali Zardari is concerned in view of enlightened authority reported in SBLR 2006 page 911 relevant page 918. In the reported citation 265-K Cr. P.C. application was moved before the trial Court and the same was dismissed on the ground that the name of accused did not transpire in the FIR and thus there was no circumstantial evidence against accused. In the instant case, it is a matter of record that as much as three FIRs were registered with interval but the name of accused. Asif Ali Zardari does not transpire in any of the FIR and as such, he was not nominated by either of the complainant. Even, if, remaining witnesses are examined, the case of the prosecution will not be improved so much so it cannot result in conviction.
After hearing the learned Advocates for the respective parties at great length and going through the case record including charge sheet, it appears that the charge was framed against accused Asif Ali Zardari for the offence under Sections 120-A & B PPC, 302 and 324 Qisas and Diyat Ordinance and finally for the offence under Section 201 PPC. As much as 13 witnesses including Dr. Ayaz Ali have been examined by the trial Court. During the course of arguments learned State Counsel Mr. Muhammad Ilyas Khan fairly conceded that except 13 witnesses listed above, there is no any witness with regard to the conspiracy.
Accordingly, I am of the considered view that it is a fit case where proceedings pending before the District and Sessions Judge Karachi East in respect of the present applicant be quashed as there is no probability of the applicant being convicted in the alleged offence, as proceedings pending as above, are nothing but abuse of process of the Court.
Learned trial Court has committed material irregularity
and illegality by passing such order. The impugned order is, therefore, set
aside and this criminal revision is allowed, whereby application under Section
265-K Cr. P.C. moved before the Court of Sessions East,
Foregoing are the reasons for the short order dated 9.4.2008 whereby accused was acquitted.
(R.A.) Accused acquitted.